BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 267 Hearing Date: May 12, 2015
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|Author: |Leyva |
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|Version: |April 21, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Registered Sex Offenders: Local Ordinances
HISTORY
Source: San Bernardino County
Prior Legislation:AB 655 (Quirk-Silva) - 2014, died in Senate
SB 386 (Correa) - 2013, amended into unrelated
bill
Support: Crime Victims United of California
Opposition:American Civil Liberties Union; California Public
Defenders Association; California Reform Sex Offender
Laws; Housing California; Citizens for Criminal
Justice Reform - California; Legal Services for
Prisoners with Children; 2 individuals
PURPOSE
The purpose of this bill is to authorize local ordinances which
restrict the presence of certain sex offenders, by 1) providing
that a local agency is not preempted by state law from enacting
and enforcing an ordinance that restricts a person required to
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register as a sex offender for an offense committed against a
minor from being present at schools, parks, day care centers, or
other locations where children regularly gather within the local
agency's jurisdiction; and 2) authorizing a local agency to
adopt ordinances, rules, or regulations that are more
restrictive than state law relating to a person's ability to be
present at schools, parks, day care centers, or other locations
where children regularly gather within the local agency's
jurisdiction when the person is required to register as a sex
offender for an offense committed against a minor.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county, or city and county where he or she is
domiciled, as specified.<1> (Penal Code § 290.)
Current law provides that no person who is required to register
as a sex offender because of a conviction for a crime where the
victim was a minor under 16 years of age shall be an employer,
employee, or independent contractor, or act as a volunteer with
any person, group, or organization in a capacity in which the
registrant would be working directly and in an unaccompanied
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<1> Penal Code section 290(b) provides: "Every person described
in subdivision (c) for the rest of his or her life while
residing in, or, if he or she has no residence, while located
within California, or while attending school or working in
California, as described in section 290.002 and 290.01, shall be
required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
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setting with minor children<2> on more than an incidental and
occasional basis or have supervision or disciplinary power over
minor children. This subdivision shall not apply to a business
owner or an independent contractor who does not work directly in
an unaccompanied setting with minors. (Penal Code § 290.95(c).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the registrant would be working directly and in an
unaccompanied setting with minor children on more than an
incidental and occasional basis or have supervision or
disciplinary power over minor children, shall disclose his or
her status as a registrant, upon application or acceptance of a
position, to that person, group, or organization. (Penal Code §
290.95(a).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the applicant would be working directly and in an
accompanied setting with minor children, and the applicant's
work would require him or her to touch the minor children on
more than an incidental basis, shall disclose his or her status
as a registrant, upon application or acceptance of the position,
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<2> For purposes of this section, "working directly and in an
unaccompanied setting" includes, but is not limited to,
providing goods or services to minors.
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to that person, group, or organization. (Penal Code §
290.95(b).)
Current law prohibits the issuance of a license to operate or
manage a community care facility to a person required to
register as a sex offender, as specified. (Health and Safety
Code § 1522.) In addition to the applicant, this section is
applicable to criminal convictions of the following persons:
A. Adults responsible for administration or direct
supervision of staff.
B. Any person, other than a client, residing in the
facility.
C. Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant
or home health aide, as specified.
D. Any staff person, volunteer, or employee who has contact
with the clients.
E. If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person
serving in like capacity.
F. Additional officers of the governing body of the
applicant, or other persons with a financial interest in
the applicant, as determined necessary by the department by
regulation. (Id.)
Current law provides that any person required to register as a
sex offender shall disclose this fact to the licensee of a
community care facility before becoming a client of that
facility, as specified. Any person or persons operating a
community care facility that accepts as a client an individual
who is required to register as a sex offender shall confirm or
deny whether any client of the facility is a registered sex
offender in response to any person who inquires whether any
client of the facility is a registered sex offender, as
specified. (Health and Safety Code § 1522.01.)
Current law requires that individuals, who are volunteer
candidates for mentoring children in foster care settings, as
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defined by DSS, shall be subject to a criminal background
investigation prior to having unsupervised contact with the
children. The criminal background check shall be initiated and
conducted pursuant to either Sections 1522 and 1522.1 or Section
1596.603, as applicable. Sections 1522 and 1522.1 may be
utilized by a county social services agency in cooperation with,
or as a component of, a licensed foster family agency. (Health
and Safety Code § 1522.06.)
Current law provides that persons required to register as a sex
offender based upon the commission of an offense against a
minor, are prohibited from residing, except as a client, and
from working or volunteering in any of the following:
(1) A child day care facility or children's residential
facility that is licensed by the State Department of Social
Services, a home certified by a foster family agency, or a
home approved by a county child welfare services agency.
(2) A home or facility that receives a placement of a child
who has been, or may be, declared a dependent child of the
juvenile court pursuant to Section 300 of the Welfare and
Institutions Code or who has been, or may be, declared a
ward of the juvenile court pursuant to Section 601 or 602
of the Welfare and Institutions Code. (Penal Code §
3003.6)
Current statutory law, as enacted by Proposition 83 in November
of 2006, provides that, ". . . it is unlawful for any person
for whom registration is required pursuant to Section 290 to
reside within 2000 feet of any public or private school, or park
where children regularly gather.
(c) Nothing in this section shall prohibit municipal
jurisdictions from enacting local ordinances that
further restrict the residency of any person for whom
registration is required pursuant to Section 290."
(Penal Code § 3003.5.)
Current case law provides that it is unconstitutional to
apply these residency restrictions "across the board to
petitioners and similarly situated registered sex offenders
on parole in San Diego County." (In re William Taylor
(2015) 60 Cal. 4th 1019.)
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Current case law provides that state law regulating the
management of sex offenders in the community supersedes any
local ordinances in this area. (People v. Nguyen (2014)
222 Cal.App.4th 1168, rw. den.)
This bill would provide the following:
A local agency (defined by the bill to mean a city,
county, or city and county) is not preempted by state
law from enacting and enforcing an ordinance that
restricts a person required to register pursuant to
Section 290 for an offense committed against a minor
from being present at schools, parks, day care
centers, or other locations where children regularly
gather within the local agency's jurisdiction.
A local agency may adopt ordinances, rules, or
regulations that are more restrictive than state law
relating to a person's ability to be present at
schools, parks, day care centers, or other locations
where children regularly gather within the local
agency's jurisdiction when the person is required to
register pursuant to Section 290 for an offense
committed against a minor.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to
reducing the prison
population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous
to the physical safety
of others for which there is no other reasonably
appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are proportionate,
and cannot be achieved
through any other reasonably appropriate remedy.
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COMMENTS
1.Stated Need for This Bill
The author states:
SB 267 is about giving locals the necessary tools to
protect their children in their community. This bill
would allow local governments to restrict the presence
of registered sex offenders, who commit crimes against
children, around schools, parks, day care centers, or
other locations where children regularly gather. In
January 2014, the Court of Appeal, Fourth District
Division 3, decided the case of People v. Nguyen
(2014) 222 Cal.App.4th 1168, concluding that the City
of Irvine was preempted by provisions in the Penal
Code from restricting the location of registered sex
offenders from city parks. Prior to the opinion
issued in People v. Nguyen numerous counties and
cities across the state had adopted local regulations
concerning the presence of sex offenders at locations
in their community where children are present. In
response to this case, an organization that supports
sex offender rights has sued in excess of 20 local
jurisdictions, forcing them to repeal all or part of
their local regulations on the presence of sex
offenders. This bill clarifies the legislative intent
that local governments are not preempted by state law
from enacting presence restrictions that are stricter
than the state requirements, with regard to sex
offenders.
2.What This Bill Would Do
As explained above, this bill would authorize local governments
to enact ordinances restricting the ability of persons required
to register as a sex offender for an offense against a minor to
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be present at schools, parks, day care centers, or other
locations where children regularly gather within the local
agency's jurisdiction. As noted by the author, in People v.
Nguyen (2014) 222 Cal. App. 4th 1168, the Court of Appeal for
the Fourth Appellate District (Division 3 - Santa Ana) struck
down a local ordinance of the City of Irvine restricting sex
offenders required to register for a crime against a minor from
entering "upon or into any City park and recreational facility
where children regularly gather without written permission from
the Director of Public Safety/Chief of Police or his designee is
guilty of a misdemeanor." That ordinance broadly defined "City
park and recreational facility" as "community parks,
neighborhood parks, the Orange County Great Park, open space
preserves, trails, including structures thereon, and all other
lands and facilities under the ownership, operation or
maintenance of the City that are utilized for public park or
recreational purposes, whether passive or active." (People v.
Nguyen at 1173.)<3>
SHOULD STATE LAW REGULATING THE MANAGEMENT OF SEX OFFENDERS
IN THE COMMUNITY NOT PREEMPT LOCAL ORDINANCES?
3.Restrictions on Sex Offender Registrants in the Community
As noted above, several existing statutory provisions
impose limits on persons required to register as sex
offenders. Current laws generally prohibit registered sex
offenders from working in positions having direct,
unsupervised contact with children. In addition,
registered sex offenders cannot work at community care
facilities, including child day-care facilities,
residential care facilities for the elderly, public
schools, and certain recreational jobs. Existing law also
requires public school districts and private schools to
conduct criminal record checks on teachers and
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<3> The court reasoned that the "state law impliedly preempts
(the Irvine ordinance) based on the implicit registration
requirement it imposes on sex offenders who wish to enter a city
park and recreational facility." (Id. at 1190.)
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administrators.
Recent cases have centered on the residency restrictions
for sex offender registrants imposed by a voter initiative,
Proposition 83, in 2006. This bill has been amended to
remove residency; its restrictions on presence remain in
the bill. The reasoning of court decisions concerning
residency may inform the Committee's consideration of this
bill's proposal concerning local ordinances which would
impose greater restrictions on a registrant's presence.
Earlier this year the California Supreme Court explained:
As we next explain, we are persuaded that blanket
enforcement of the mandatory residency restrictions of
Jessica's Law, as applied to registered sex offenders
on parole in San Diego County, cannot survive even the
more deferential rational basis standard of
constitutional review. Such enforcement has imposed
harsh and severe restrictions and disabilities on the
affected parolees' liberty and privacy rights, however
limited, while producing conditions that hamper,
rather than foster, efforts to monitor, supervise, and
rehabilitate these persons. Accordingly, it bears
no rational relationship to advancing the state's
legitimate goal of protecting children from sexual
predators, and has infringed the affected parolees'
basic constitutional right to be free of official
action that is unreasonable, arbitrary, and
oppressive. (In re William Taylor, infra, at 1038.)
Members may wish to discuss whether this bill would advance
the "state's legitimate goal of protecting children from
sexual predators," and how this bill, which would apply not
only to parolees but any sex offender registrant whose past
offense was against a minor, would affect registrants who
are living law-abiding lives, especially if ordinances vary
from jurisdiction to jurisdiction.
Members also may wish to discuss whether due process would
require actual notice of each jurisdiction's ordinance, and
how sex offender registrants affected by these ordinances
would receive actual notice of their requirements. In
Lambert v. California (1957) 355 U.S. 225, the United
States Supreme Court held that requiring convicted felons
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to register within five days of coming into the city of Los
Angeles when such persons had not had actual notice of the
city's registration requirement was an unconstitutional
denial of due process. Many counties have many local
jurisdictions within their boundaries. For example, there
are 88 cities within Los Angeles County, 28 cities in
Riverside County, 24 incorporated cities in San Bernardino
County, and 17 cities in San Diego County. Unlike persons
who are personally informed of their duty to register, it
is unclear how persons subject to a patchwork of unknown,
potentially multiple and varying local ordinances
restricting their presence in public places would gain
actual knowledge of these restrictions.
WOULD THIS BILL VIOLATE CONSTITUTIONAL DUE PROCESS RIGHTS?
HOW WOULD A PATCHWORK OF VARYING PRESENCE ORDINANCES BE?
WOULD PUBLIC SAFETY BE ENHANCED BY LOCAL COMMUNITIES
DETERMINING WHERE SOME PERSONS WHO ARE REQUIRED TO REGISTER
AS SEX OFFENDERS MAY OR MAY NOT BE PRESENT?
An October 2014 report released by the Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering
and Tracking ("SMART") in the federal Department of Justice
developed the Sex Offender Management Assessment and
Planning Initiative (SOMAPI), "a project designed to assess
the state of research and practice in sex offender
management. That report states in part:
Despite the intuitive value of using science to guide
decision making, laws and policies designed to combat
sex offending are often introduced or enacted without
empirical support. The reasons why this occurs are
complex and are not explored here. However, there is
little question that both public safety and the
efficient use of public resources would be enhanced if
sex offender management strategies were based on
evidence of effectiveness. . . .
(S)tudies have revealed that proximity to schools and
other places where children congregate had little
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relation to where offenders met child victims.<4>
The SOMAPI report included the following related
recommendations:
" Jurisdictions should use specialized supervision
with a rehabilitation orientation as one component of
an overall sex offender management strategy.
" Given COSA's (Circles of Support and
Accountability<5>) ability to facilitate collaboration
with members of the community, the SOMAPI forum
experts recommend COSA as a sex offender management
strategy.
" Given the limitations of scope and methodology in
existing SORN (Sex Offender Registration and
Notification) research, further research is desirable
to inform any future changes to SORN.
" SOMAPI forum participants do not recommend
expanding the residency restriction policy.
WOULD THIS BILL ENHANCE PUBLIC SAFETY AND THE EFFICIENT USE
OF PUBLIC RESOURCES?
1.California Sex Offender Management Board: Containment
Model and Exclusion Zones
As explained in a recent report issued by the California
Sex Offender Management Board:
AB 1844, known as the Chelsea King Child Predator
Prevention Act, was signed into law by the Governor in
2010 and made several changes to the Penal Code
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<4> SOMAPI (http://smart.gov/SOMAPI/index.html.)
<5> "The COSA model begins after offenders have completed
legal supervision. It helps offenders garner community resources
while holding them accountable to a self-monitoring plan.
Studies of COSA have consistently found that its participants
sexually recidivate at a significantly lower rate than the
comparison group." (SOMAPI, infra.)
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regarding sex offender management. One significant
change now requires that each registered sex offender
on parole or county probation be managed under the
Containment Model. Though there is flexibility in
local application, the essence of Containment is that
it include a victim-centered approach to policy and
practice, supervision (State Parole or County
Probation), specialized treatment provided by
certified mental health professionals, and polygraph
evaluations provided by certified polygraph examiners.
The vision is when these partners are collaborating,
the sex offender will be "contained", thereby reducing
the risk of sexual reoffending (Penal Code §§ 290.09,
1203.067, 3008, and 9003.)<6>
Members and the author may wish to discuss the
implementation of the Containment Model in local
jurisdictions, and whether its implementation may be an
important priority for effectively managing sex offenders
in the community.
With respect to exclusion zones, as this bill proposes, the
Board states:
CASOMB has discussed whether to recommend a model
ordinance on where sex offenders can go in the
community. However, no research shows that exclusion
zones are helpful in preventing re-offense.
Restrictions about where the offender can go in a
community are routinely imposed as part of the
individual parole and probation conditions because
they can be fashioned to relate to the particular
offender. State laws already preclude registered sex
offenders from being on school campuses and from
working with children under defined circumstances.
(Penal Code §§ 626.81, 290.95.) There is no evidence
that broader restrictions will be effective, or will
not be counter-productive by preventing offenders from
obtaining appropriate employment.
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<6> CSOMB, Year-End Report (2014)(
http://www.cce.csus.edu/portal/admin/handouts/CASOMB_
End_of_Year_Report_to_Legislature_2014.pdf
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CASOMB takes the position that any law precluding sex
offenders from being in particular places ("exclusion
zones") must be tailored to the individual, including
a consideration of the risk level of the offender in
order to be effective and need to have reasonable
distances and protected places along with consistency
in implementation statewide. Correlating the tiered
registry and exclusion zones would assist law
enforcement in monitoring those individuals most
likely to reoffend and would increase options for
housing and employment in the interest of developing
offender stability in order to prevent recidivism.<7>
IS THIS BILL INCONSISTENT WITH THE FINDINGS AND
RECOMMENDATIONS OF THE CALIFORNIA SEX OFFENDER MANAGEMENT
BOARD?
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<7> CSOMB, Year-End Report (2014), supra at 17-18 (emphasis
added).